Youth Rights Guide

The Youth Rights Guide is an ever-evolving resource, and a large topic. The Guide right now focuses on the civil rights of public or charter school students in Hawaii. Some of the rights discussed here may apply only to students in Hawaii public or charter schools and not to other students (like those who attend private schools or are homeschooled). All references to “school” in this handbook refer to public or charter schools under the jurisdiction of the Hawaii Department of Education. To learn more, also consult your school’s policy guide or student handbook. For informational purposes only, not intended as a comprehensive guide or legal advice. Presented as a public service by the ACLU of Hawaii Foundation. Contents are freely usable for non-commercial purposes. For a printer-friendly version: http://www.printfriendly.com/print/?source=homepage&url=https%3A%2F%2Facluhi.org%2Fyouthrights%2F

UPDATED January 2019.

Help us make this guide better! To suggest edits, new sections, or any feedback, please confidentially writeoffice@acluhawaii.org.

Do I have rights? Yes! All individuals living in the United States, including young people like yourself, enjoy certain freedoms under Hawaii and U.S. laws. These privileges do not belong only to adults. You have independent rights — in school, at home, and in the community where you live — that you may assert when necessary.

Are they the same as adults’? Not always. Your rights may differ from those of adults. Also, with rights come responsibilities — you must act within the law, and be able to recognize when the law is being violated. Only then can you confidently and effectively assert your rights. This guide can help you to do that.

But remember: This guide is not your lawyer. The information provided here is not legal advice. Only an attorney can provide that. Also, the laws can change. This material reflects what the ACLU of Hawaii Foundation (ACLU) understood the law to be when this guide was published. It doesn’t mean the ACLU necessarily agrees with the law.

If you think your rights have been violated: Talk to your parents/guardians or other trusted adult. If it happened at school, talk to a school official and read your school’s policy guide or student handbook. You can file a grievance with your district’s Complaint Board (see the rules here: http://tinyurl.com/m4fclwo). You can also confidentially contact the ACLU:

Can I go to a different school? If you want to attend a school that’s not in your district, you must file a geographic exception application with the Hawaii Department of Education (DOE). You can find the form on the DOE website. There are two other ways you can attend a different school without filing an application:

If your parents/guardians allow you to move in with someone who lives in the school district where you want to go to school; or

If you are emancipated. Being emancipated means your parents/guardians are no longer responsible for you. In Hawaii, the only way to be emancipated as a minor is to get married.

Are there any other options? Your parents/guardians or guardian can have you get your education at home — homeschooling — or enrolled in another educational program that has been approved by the Superintendent of Schools.

What if I’m homeless or don’t have a permanent address? There are special exceptions for those who may not be living at home because of financial reasons. You can enroll right away even if you don’t have all your records or paperwork. You can stay in the school even if you later moved outside the district. Contact the state Homeless Concerns Office at (866) 927-7095.

What if I have a disability? Schools must provide you with the necessary resources for you to attend school with a disability, at no cost to your parent or guardian. These special education resources could include (but are not limited to) academic services, speech-language services, psychological services, physical and occupational therapy, counseling services, and parent/guardian education.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment to the U.S. Constitution

Can you say whatever you want, whenever and wherever you want? Not always. You can’t yell “Fire!” in a crowded theater (unless there really is a fire). There are free speech limits for everyone, not just youth. But the First Amendment protects your freedom of speech in many important ways. Here’s what you should know.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” – Justice Abe Fortas, in Tinker v. Des Moines, 1969

What is speech? It’s not just talking. Speech is any expression of what you think or believe, either verbally, in writing or other nonverbal means, like making a gesture. This can include everything from talking, writing, handing out petitions or flyers, posting messages on the internet, and displaying messages on a T-shirt or other clothing.

Limitations on free speech. There are certain forms of expression that the school can prohibit.
Here’s what to look for:

Will your speech disrupt classes or other school activities?

Does it threaten immediate harm to the school, the students, or the community?

If your answer to any of the above is yes, then it’s likely the kind of speech your school can prohibit. But sometimes it’s not clear that your speech will cause these problems. If you’re not sure, talk to an adult you trust or contact the ACLU.

Can I speak out in school? You have the right to express your opinions in school, but there are some limits. Here they are:

School-sponsored events: Your school can regulate what you say at school events like sporting events, assemblies, and graduation ceremonies. So what can you say? Think about what your school, your parents/guardians and other students would consider to be OK. If you know it’s going to cause a serious disruption, the school can probably prevent you from saying it.

Class assignments: You can’t be punished for writing about a controversial topic, or expressing a certain position about it — as long as you meet the assignment’s requirements set out by your teacher. She can’t ask you to express your opinion on a subject, and then give you an F for doing so. Just make sure you’re sticking to the subject and following the rules.

Your clothes: Your clothes can have a message on them, as long as it’s not vulgar or disruptive to other students’ learning (see the restrictions on the previous page) — even if the school disagrees with the message. Of course, if your school has a dress code policy (or uniforms), then you have to follow those rules. But if a teacher asks you to remove, cover up, or change your t-shirt because of the message, make sure you understand why. If you feel your rights have been violated — that the dress code is unreasonable, or violates your rights to speech or expression — contact the ACLU.

School uniforms: Schools are allowed to establish school uniforms IF: they can show that the majority of the members of the school community support this, that no undue financial burden is placed on students, and that there is a process to request a waiver from the dress code.

Body art and hairstyles: Schools can regulate body piercings as part of the dress code. But the dress code has its limits. You can have dreadlocks or dye your hair orange if you like. If you’re wearing something for legitimate religious reasons, like a Jewish yarmulke, the school can’t stop you by saying it violates the dress code.

Demonstrations and protests: You can participate in protests, as long as you’re not skipping class to attend. If you’re on school property, school officials can restrict where and when you protest. They can stop a protest if it causes a serious disruption to school activities.

Do I have to participate? Your school can’t require you to recite the Pledge of Allegiance, salute the flag, or sing the National Anthem; you don’t have to stand, or leave the room, while others do so.

Sometimes students create non-school-sponsored groups around common interests, like religion or political views. These are groups not sponsored by the school or directly related to school courses. The school may not agree with the group’s views. Even so, you have a constitutional right of free association. Here are some questions and answers about these groups:

Can the school prevent us from meeting? It depends. Schools can set rules about where and when non-school-related groups meet at school. But the rules must be the same for all student groups. They can’t let some groups meet and not others.

What if my student group is religious? Or it’s a group like the Gay-Straight Alliance? If the school allows groups to meet on school grounds that are not directly related to school courses — like the chess club — the school must let any other group meet. That could be a Bible study group, a pro-choice group, or the Gay-Straight Alliance. The school can require that the group be open to all students, regardless of race, gender, gender identity or sexual orientation.

Can the military recruit me at school? Schools will give your personal information to recruiters unless your parent or guardian signs a form opting you out of this. Ask your school counselor or find the form here: http://tinyurl.com/l2kdp2f. Students from Farrington High School made this video in 2014 on this topic: https://www.youtube.com/watch?v=9yKIqWPl0Gk

Do you want to distribute a flyer, petition or newsletter with a message on campus? Do you want to voice your opinion in the school newspaper? How about putting up a notice on the school bulletin board? There are a few basic principles you should remember:

Can I disagree with the school? You have a right to voice your opinion through printed materials such as petitions, even if the school doesn’t agree with your views.

Can I hand out petitions at school? You can distribute materials at school, as long as you don’t seriously disrupt or interfere with school activities. The school can place some restrictions on when, where and how you distribute them.

What is school-sponsored activity? Think of it as any activity that parents/guardians, students, and the community would think the school approved. So if your speech is school-sponsored, you’ll need the school’s approval.

What about controversial materials? School officials can stop you from distributing materials at school if they are deemed lewd or vulgar, could cause a serious disruption of school operations, or promote illegal drug use. There are also restrictions on distributing “promotional brochures and flyers.” http://tinyurl.com/q2ojso7

The First Amendment protects the free speech rights of Internet users, including public school students. But like other free speech rights, what you can say on the Internet is not unlimited. You should be careful about what you post online about your school and other students. And be careful about what other students post about you. Here are some things you should know:

The Internet at school: Schools can limit what you do on school-owned computers. All Hawaii schools restrict websites that include adult content, illegal activities, and other shocking and offensive content (racist/hate speech).

Can I use my own computer to talk about school? Generally, yes. However, school officials may be able to punish you if your posts disrupt school or make threats against teachers or other students — even if you do it off campus and on your own time. And be careful about what your friends post about you. If a friend posts a picture of you violating school rules, such as drinking at a school-sponsored event like a field trip, school officials can punish you if they find out.

Cyberbullying — what is it? The DOE defines it as “electronically transmitted acts that cause mental or physical harm to other student or school personnel that is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening, or abusive educational environment.”

In other words, if you post comments or other content that is “intimidating, threatening or abusive” toward another student or school staff, or it creates a hostile environment at school, you could be accused of cyberbullying.

Can I get in trouble for sexting? Currently, sexting is a crime in Hawaii if one or more of the parties is a minor. Regardless, sexting is a bad idea. Once you send out a sexting message or photo, you’ve lost control of where it can go. The person may lose his/her phone or it may get forwarded accidentally or deliberately. Once it’s out in the Internet, it can spread faster than a wildfire and it’s nearly impossible to get back.

Under the First Amendment, you have the right to practice the religion of your choice. You also have the right not to practice any religion. All religions should be tolerated and no religions should be favored.

Can I practice my religion at school? Yes, as long as you don’t disrupt school operations. You can wear religious symbols and express your religious views. You just can’t be indecent or disruptive. You can organize religious groups at school as long as the school allows other groups that conduct activities not related to school to meet. You can also hand out flyers about community events relating to your religion. Teachers can too, if they normally hand out other flyers about community events to students.

Can the school teach religion? Yes, as long as it’s for an educational purpose such as teaching the influence of religions on history, literature or culture. Teachers or school staff are not allowed to promote one religion over another, or insult any religion. Teachers can also explain “intelligent design” in some classes, but not in science class as an alternative to the theory of evolution.

Can the school have religious activities? The First Amendment does not allow government — including public schools — to get involved in religious activities. Schools can’t post religious materials (like the Ten Commandments or flyers from churches). The school can’t have activities like group prayer before school-sponsored events, such as during class, a football game or graduation ceremonies — even if the students want it. A teacher might have a moment of silence in class, as long as there is a non-religious reason. If you notice your school violating these policies, please contact the ACLU.

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” – Title IX Amendment of the Higher Education Act of 1972

Boys and girls must have equal opportunities. Title IX, also known as the Patsy Mink Act, is a federal law that requires all government-funded educational programs (including athletics, career education classes, and college prep resources) to provide equal opportunities for girls and boys to participate, and to ensure equal treatment of girls and boys while they are participating in the program. Title IX also protects against sexual harassment from school officials and other students. The ACLU of Hawaii has a website dedicated to Title IX in Hawaii here: https://acluhi.org/title-ix-prohibiting-sex-discrimination-in-schools/

What does equal opportunity mean? In the context of Title IX, it basically means the following:

The ratio of male and female athletes should be roughly equal to the ratio of male students to female students.

The school must accommodate the interests and abilities of both male and female students.

What does equal treatment mean? All girls and boys sports teams sponsored by a public school must have the same quality practice/playing area, equipment, funding, publicity, coaching, and scholarship opportunities.

What are examples of unequal treatment?

If the boys’ tennis team has to play on Thursday afternoons, but the girls’ team gets to play on Friday nights when more people can show up to watch.

If the boys’ football team has private donors that pay for team jackets or a banquet, and no girls’ team gets anything like that and the school doesn’t provide them either.

If the girls get the “good” gym and the boys don’t.

If the girls’ team has to fundraise to pay for trips and the boys don’t.

Does Title IX protect transgender students?

Yes! Title IX protects transgender students, who must be allowed to use the restroom that corresponds with their gender identity; similarly, schools cannot force transgender students to wear clothes (like graduation gowns or prom dresses) that don’t correspond with the student’s gender identity. Schools must take steps to protect all students (including transgender students) from harassment and bullying on the basis of race, sex, sexual orientation, religion, and gender identity.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – Fourth Amendment to the U.S. Constitution

The Fourth Amendment to the U.S. Constitution protects you and your belongings from searches and seizures by the government without a warrant, except in a few circumstances. However, you have slightly less privacy in school than out in public.

AT SCHOOL: SEARCH AND SEIZURE

Can school officials search my locker? School rules state that school officials can search your locker at any time for nearly any reason, even if you’re not suspected of wrongdoing. That’s because they consider the on-campus lockers to be school property, not yours. They might even use drug-sniffing dogs. However, they can’t conduct a search for discriminatory reasons — if it is based on a student’s race, color, national origin, ancestry, sex, gender identity and expression, religion, disability, or sexual orientation.

Can school officials search me? Not always. You are not school property or a school locker. School officials can search your person only if they have reason to believe, based on the circumstances, that you violated school rules or the law. There are other limits, too:

No random searches of yourself or your personal belongings, like your purse or backpack.

No strip searches.

No bodily contact or force (unless it’s to prevent immediate harm to the health and safety of yourself or others, or if you physically resist).

Searches must be limited to the object or objects about which school officials have a reasonable suspicion. If they’re looking for a stolen trombone, they can’t search your purse for it. But if a search turns up other things that violate school rules or the law, officials may seize those as well as the missing trombone.

Can I refuse to be searched? School officials may have a right to search you if they have a reasonable suspicion. But you can tell officials that you do not consent to a search. Just respectfully say “I do not consent to a search.” Don’t resist the search, but do not consent either. This is a good idea even if you think you’re being wrongfully searched, because the fact that you refused consent could make a difference if school officials find something and you end up in court.

What should I do if I’m about to be searched? If a school official like a teacher wants to search you, or search or seize your belongings, the official must:

Allow you to voluntarily hand over the evidence;

Tell the principal a search is about to take place;

Make sure another school official is present to act as a witness.

But there is one exception: if the official believes immediate action is necessary to protect the health and safety of yourself or someone else.

Isn’t there anything else I can do to protect my privacy? Yes. The ACLU strongly disagrees with school rules regarding searches and believes they may be unconstitutional. If you think your rights have been violated, contact the ACLU. top

Medical Privacy

Can I opt out of vaccinations required for school? You may be exempted from vaccinations required to attend school for medical or religious reasons only. You can get a form from your school to apply to the DOE for this exemption.

Can I take medications at school? In most cases, you can take your medication at school. You must fill out a Request to Store and Administer Emergency Rescue medications of Daily, Routine, Scheduled Medications. You can find that form here: http://bit.ly/1qBiBCq

Can I see what’s in my school records? Either your parents/guardians or yourself, if you’re 18 or older, have rights under the Family Educational Rights and Privacy Act (FERPA). There are four basic rights:

The right to inspect the records within 45 days of the request.

The right to request the amendment of records that the parent, guardian, or eligible student believe are inaccurate or misleading.

The right to consent to disclosures of personally identifiable information contained in the records, except to the extent that FERPA authorizes disclosure without consent. One exception is disclosure to school officials with legitimate educational interests.

The right to file a complaint with the U.S. Department of Education concerning alleged failures by the school to comply with FERPA.

What are my rights regarding pregnancy, birth control and abortion? You have certain privacy rights over your own body and you can make most decisions without government interference.

What if I get pregnant? The school can’t force you to leave school just because you are pregnant. Under Title IX, also known as the Patsy Mink Act, (see section on “Equal Opportunities and Equal Treatment”), the school must allow you to attend graduation and participate in most other school activities.

Do I need my parents’/guardians’ consent to get birth control or STD testing? Will my parents/guardians be told? If you are 14 and older, the answer to both questions is “No.” You don’t need parental consent to get birth control, emergency contraception, or STD testing and treatment. However, doctors are not required to keep your medical information confidential from a parent or guardian. There is an exception to this: If your clinic receives federal funding under a federal law called Title X, the clinic can’t release any information to any person (including your parent/guardian) without your consent. To find out whether your clinic receives Title X funding, please contact the clinic.

What if I’m 13 years old or younger? Then, parental consent IS required for birth control, emergency contraception, and STD testing, unless your clinic receives federal funding under Title X.

What about abortion? A minor of any age may consent to have an abortion – your parents/guardians do not need to be notified or give consent. Call Planned Parenthood at (808) 589-1149 if you have questions.

Where can I get more information about childbirth, birth control, emergency contraception and abortion? From the state and private agencies:

Hawaii Department of Health: To get information on free or low-cost reproductive services through the Family Planning Health Clinics, call (808) 586-4400 or visit: http://tinyurl.com/mxbjhm7

Planned Parenthood of Hawaii: This is a private non-profit agency that can help and provide you with more information about obtaining birth control, emergency contraception or an abortion. Call (808) 589-1149 or visit: http://tinyurl.com/mnpqrw7

What about insurance? For childbirth, most insurers will pay the bills, and you are likely a member of your parents’/guardians’ health insurance plan. Call your insurance company if you don’t know your specific plan information. Otherwise, Planned Parenthood or the Department of Health can provide you with more information about your options.

Will public schools provide sex education? As of June 2015, public schools are required to provide sex education for students, and it must be comprehensive, age-appropriate and medically accurate. The Department of Education is not permitted to support abstinence-only-until-marriage programs. Please contact the ACLU if this is what you are being taught at school. If you do not want to participate in your school’s sex education class, or your parent or guardian does not want you to participate, you are allowed to opt-out with a parent or guardian’s signature.What the law says about sex education

(Hawaii Revised Statutes §321-11.1)

“Sexuality health education programs funded by the State shall provide medically accurate and factual information that is age appropriate and includes education on abstinence, contraception, and methods of disease prevention to prevent unintended pregnancy and sexually transmitted disease, including human immunodeficiency virus.”

Bullying, harassment, and cyberbullying are all prohibited. If you experience harassment or bullying because of your sexuality or gender identity, and you report it to any school official, they must investigate if there is any reason to believe your allegations are true.

What should I do if I experience anti-gay harassment at school? Tell a trusted adult immediately. Harassment in school based on race, gender, gender identity, or sexual orientation is strictly prohibited and should not be tolerated. If you are searched or otherwise targeted by an adult, report it to the principal, a trusted adult, the DOE Civil Rights Office, or the ACLU.

I’m transgender. Can I use the school bathroom that matches my gender identity? Can I dress in accordance with my gender identity? Yes! Title IX requires schools to treat students consistent with their gender identity, which includes honoring preferred pronouns and allowing students to use single-sex facilities (i.e. bathrooms, locker rooms) that correspond with their gender identity. Similarly, schools cannot force transgender students to wear clothes (like graduation gowns or prom dresses) that don’t correspond with the student’s gender identity.

Can I bring a same-sex date to the prom? Yes! Your First Amendment right to free association allows you to bring any date you want to the prom (as long as it doesn’t cause a disruption). A school that prohibits bringing a date to a prom based on his or her sex is in violation of anti-discrimination policies. For support in bringing a same-sex date to your prom, you can contact the Gay-Straight Alliance: http://gsahawaii.org/

As an individual living in the United States, you have certain rights called Due Process rights that can protect you even if you are disciplined at school. You can read about those rights at http://tinyurl.com/7ewrfrz.

What is Due Process? It is the obligation of the government to grant you all your legal rights set down by law. The two most important rights you should know:

Your right to notice: School officials must tell you what it is you did to deserve the punishment they are giving you.

Your right to be heard: If you are disciplined, you are entitled to some kind of hearing or other process by which you can learn about the evidence against you and to challenge the evidence if you wish.

When would I assert my Due Process rights? If you are facing a suspension, disciplinary transfer, crisis removal, or outright dismissal, the school must follow certain rules that you should be aware of. Remember, a teacher cannot act against you on her own; she must get approval from a principal or Complex Area Superintendent.

1. Less than 10 days: Crisis removals or suspensions under 10 days require approval by the principal. (If the punishment lasts longer than 10 days, it must be approved by a Complex Area Superintendent.) The school must provide both a verbal and a written statement to the parent/guardian that explains what happened and what disciplinary actions they will take. That statement must include:

What you are being accused of;

What evidence they have;

What disciplinary action they are taking;

A time, date, and place to have a conference with your parent/guardian.

2. Longer than 10 days: This includes disciplinary transfers or dismissals. For these cases, more rules apply to the school:

The school must conduct an investigation, then notify and obtain approval from the Complex Area Superintendent to start disciplinary proceedings.

Your parent/guardian must be notified as soon as possible about the proceedings. A written statement must be mailed to your parent/guardian within three days.

Your parent/guardian can appeal the decision to the Complex Area Superintendent or another impartial DOE person. If that’s unsuccessful, an appeal can be made to the Superintendent of Schools.

If it’s a crisis removal of greater than 10 days, the Complex Area Superintendent must approve it. A copy of the written statement must be send to the Complex Area Superintendent in any case.

What do you do if police officers arrive at your school looking for you? Even if you are a minor, you do have certain rights that that the police must respect. You should know your rights and assert them if necessary.

If the police want to question you: The police can question you at school about school-related or non-school-related offenses. If this happens to you, remember these rules:

You do not have to answer their questions. All you have to provide is your name, address, and birth date. Respectfully tell the police or school official that you wish to remain silent and you want to call your parent/guardian.

For a school-related offense, the police must get permission from the principal to question you.

The school official must try to inform your parent/guardian of what is happening. There is one important exception, though – if you are the victim, and your parent/guardian or someone else in your household is suspected of committing an offense against you, they might not be notified.

If the police want to arrest you: It’s likely you will be sent to the principal’s office to be arrested, rather than in your classroom. The school official must try to inform your parent/guardian of the arrest.

If I’m a minor and I’m arrested, what are my rights? You have the right to remain silent. You must give your name, address, and birth date, but you can say you wish to remain silent and that you decline to answer any more questions without your attorney and/or parent/guardian present. Some other things to remember:

You have to ask for and insist on your rights. You do have the right for your parent or guardian to be present, but the police do not have to tell you that. Be sure to ask to have your parent or guardian contacted but do so politely.

You don’t have a right to a phone call. The police will call for you.

You have a right to a lawyer. If you don’t know any lawyers, ask for one. Always have a lawyer present during questioning, even if you are willing to answer questions without your parent/guardian present.

Always behave politely and respectfully, even when you are insisting on your rights. Many of the staff members you see have the power to release you to a parent/guardian.

You have a right to see a judge quickly if the police want to detain you for more than one business day.

How to report concerns: your teacher (if your rights were violated in the classroom, and you think it can be resolved in the classroom), your principal (if the violation happened on a school-wide level or if your teacher is not responsive), or your complex area superintendent (if the violation happened on a district level, or if your principal is not responsive). You can also confidentially contact the ACLU of Hawaii (see “Need Legal Help?” at http://www.acluhawaii.org)